United States District Court, S.D. California
SAMUEL W. GIBBS III, Plaintiff,
SAN DIEGO CHILD SUPPORT SERVICES, Defendant.
ORDER GRANTING MOTION TO AMEND COMPLAINT
Dana M. Sabraw, United States District Judge
matter comes before the Court on Plaintiff Samuel W. Gibbs
III's motion to amend complaint, seeking to substitute
County of San Diego for San Diego Child Support Services
(“SDCSS”) as a defendant. For the following
reasons, the Court grants the motion.
October 24, 2014, Plaintiff, proceeding pro se, filed a
complaint against Defendants Shari L. Kugler and SDCSS. After
Plaintiff's several failed attempts to effect service on
Kugler, the Court dismissed the complaint against Kugler on
January 26, 2017.
December 27, 2016, Plaintiff filed a request for entry of
default against SDCSS, which the Clerk of Court granted on
January 3, 2017. Subsequently, on February 15, 2017,
Plaintiff filed a motion for default judgment against SDCSS.
On February 23, 2017, County of San Diego moved to set aside
the default entered against its department, SDCSS, arguing
defective service was made on an improper defendant because a
department of a municipality may not be sued. In response to
the motion to set aside default, Plaintiff filed a motion for
joinder of parties, requesting that County of San Diego be
joined as a defendant.
March 17, 2017, Plaintiff filed a motion to amend complaint
accompanied by a proposed first amended complaint
(“FAC”), seeking to substitute County of San
Diego as a defendant in lieu of SDCSS. County of San Diego
filed a response in opposition to the motion. Plaintiff did
not file a reply. Instead, Plaintiff filed a motion for
of the Federal Rules of Civil Procedure mandates that
district courts “should freely give leave [to amend]
when justice so requires.” Fed.R.Civ.P. 15(a)(2).
“This policy is to be applied with extreme
liberality.” Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quotation
omitted). “[T]he ‘rule favoring liberality in
amendments to pleadings is particularly important for [a] pro
se litigant. Presumably unskilled in the law, the pro se
litigant is far more prone to making errors in pleading than
the person who benefits from the representation of
counsel.'” Lopez v. Smith, 203 F.3d 1122,
1131 (9th Cir. 2000) (quoting Noll v. Carlson, 809
F.2d 1446, 1448 (9th Cir. 1987)).
determining whether to allow an amendment, courts consider
whether there is “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment[.]” Foman v.
Davis, 371 U.S. 178, 182 (1962); see also Smith v.
Pac. Prop. Dev. Co., 358 F.3d 1097, 1101 (9th Cir. 2004)
(citing the Forman factors). “Not all of the
[Foman] factors merit equal weight…. [I]t is
the consideration of prejudice to the opposing party that
carries the greatest weight.” Eminence
Capital, 316 F.3d at 1052 (citing DCD Programs, Ltd.
v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987));
Howey v. United States, 481 F.2d 1187, 1190 (9th
Cir. 1973) (“the crucial factor is the resulting
prejudice to the opposing party.”). “The party
opposing amendment bears the burden of showing
prejudice.” DCD Programs, 833 F.2d at 187.
“Absent prejudice, or a strong showing of any of the
remaining Foman factors, there exists a
presumption under Rule 15(a) in favor of granting
leave to amend.” Eminence Capital, 316 F.3d at
1052 (italics in original).
of San Diego does not contend the proposed FAC would impose
undue prejudice or that Plaintiff has exhibited undue delay
or bad faith. Indeed, the Court finds no undue prejudice
exists as to County of San Diego, because Plaintiff is not
seeking to add new claims or allege new facts with this
amendment. Moreover, given Plaintiff's pro se status and
lack of legal expertise, the Court does not find any instance
of undue delay or bad faith on the part of Plaintiff in
bringing this motion. County of San Diego's sole argument
against granting leave to amend is futility. However, most
courts recognize that “‘[d]enial of leave to
amend on [futility] ground[s] is rare.'”
Defazio v. Hollister, Inc., No. CIV 04-1358 WBS GGH,
2008 WL 2825045, at *2 (E.D. Cal. July 21, 2008) (quoting
Netbula v. Distinct Corp., 212 F.R.D. 534, 539 (N.D.
Cal. 2003). To the extent County of San Diego challenges the
merits of the FAC, the Court defers consideration of the
merits until after Plaintiff files the FAC. See
Netbula, 212 F.R.D. at 539 (“Ordinarily, courts
will defer consideration of challenges to the merits of a
proposed amended pleading until after leave to amend is
granted and the amended pleading is filed.”); Hynix
Semiconductor Inc. v. Toshiba Corp., No. C-04--4708 VRW,
2006 WL 3093812, at *2 (N.D. Cal. Oct. 31, 2006)
(Defendant's challenges to the merits of a proposed
amended pleading “should be addressed in a motion to
dismiss or for summary judgment, not in an opposition to the
present motion for leave to amend.”).
after considering the Foman factors, the Court finds
that leave to amend ...